International lawyer Robert Auerbach has prepared checklists for exporters covering a wide range of topics.
May 2006: The checklists are now listed by topic in these categories: agents, confidentiality, distribution, due diligence, human resources, intellectual property, joint ventures, outsourcing, purchasing, risk and liability, sales, and technology.
These checklists are provided for information purposes only and are no substitute for professional advice, which should be sought prior to entering into any transaction. New Zealand Trade and Enterprise (NZTE) has not verified these checklists and makes no representations as to the completeness, correctness, currency, accuracy or fitness for purpose of the information, or the person that prepared the information. Accordingly, NZTE will not be responsible for any damage or loss suffered by any person arising from the information whether that damage or loss arises from negligence or otherwise.
(PDF, 55 KB)
This checklist is a list of questions that will help parties define whether they are an agent or a distributor.
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(PDF, 47 KB)
Paying commission to someone who registers interest from others in your product on your behalf can be a safe and economic way to make sales. However there are still risks to consider and safeguards to put in place to protect you from paying for illegitimate finders fee claims. This checklist covers the conditions to be included in a finders fee contract.
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(PDF, 105 KB)
The purpose of this document is to provide the intended recipients with a checklist of points that need to be discussed prior to the drafting of an agency agreement.
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(PDF, 65 KB)
From time to time, an exporter may wish to divulge information that it considers confidential. Confidential information may be market related, such as an exporter's pricing strategy, margins and costs. It may be technology related, such as an exporter's intellectual property, know-how and trade secrets. A confidentiality agreement gives an exporter a measure of security when it divulges confidential information.
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(PDF, 171 KB)
A non-disclosure agreement is the agreement that you use if you want to disclose ideas or information that, in some sense, belong to you. A non-disclosure agreement gives a discloser a sense of security when they disclose confidential information to a recipient.
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(PDF, 71 KB)
If certain conditions are met, then a preferred supplier relationship could have benefits for both the supplier and the customer. The checklist assumes the supplier relationship is for technology or equipment. Exporters might use the benefits listed in this checklist to support a preferred supplier relationship with their customers overseas.
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(PDF, 129 KB)
This guide offers helpful advice and tips on dealing with distributors. It emphasises the importance of due diligence before entering into a distributor agreement.
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(PDF, 97 KB)
An exporter has researched and developed a product. The product may be just a prototype or it may be fully developed and market ready. In either case, the exporter may lack the resources or the competitive advantage to manufacture and market it overseas. An exporter in these circumstances might well consider granting someone else the right to manufacture and market the product in a defined territory using the exporter's technology, know-how and intellectual property.
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(PDF, 108 KB)
Large exporters can afford to set up branches in distant markets and thereby handle their own distribution. Most other exporters must rely upon an independent distributor to buy and then distribute their products. A distribution agreement is the basic legal contract that an exporter has with a distributor. Use this checklist to avoid misunderstandings and set expectations with distributor.
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(PDF, 242 KB)
A helpful list of all documents that could or should be collated in response to a due diligence request is contained within this checklist.
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(PDF, 66 KB)
This checklist addresses the issues that a consulting agreement must contain when a company is engaging a person as a consultant.
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(PDF, 67 KB)
An employment contract defines the legal relationship between an employer and employee. These days, an employment contract is a practical and legal necessity for both employer and employee. Without one, both employer and employee operate with uncertainty that is not conducive to a healthy employment relationship. The employment contract checklist ensures that neither employer nor employee overlooks any important aspect of the employment relationship.
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(PDF, 78 KB)
Whether a golden handshake or outright dismissal for cause, severing an employee raises a number of legal and commercial risks for the employer. These risks are compounded where an employee has devoted many years of service to the employer. They are further compounded where an employee's age puts the employee in a "protected class". The purpose of this checklist is to highlight the many issues concerning employee severance agreements.
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(PDF, 43 KB)
The following is a detailed example of an appropriate form to complete when wishing to disclose an invention.
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(PDF, 62 KB)
This is a checklist of issues that a research and development agreement would normally cover. It would be desirable for the parties to reach an agreement, in principle, concerning these issues, before a lawyer drafts the agreement.
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(PDF, 129 KB)
A joint venture may provide the cash an exporter needs to penetrate a new market. An exporter who lacks the resources to set up a branch but does not wish to surrender control to an independent distributor may use a joint venture to establish a marketing presence in the target market. A joint venture checklist identifies all issues that joint venture partners should consider before they sign a joint venture agreement.
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(PDF, 133 KB)
This checklist covers all bases to discuss when parties are thinking of entering a share purchase agreement.
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(PDF, 90 KB)
This checklist covers the issues and risks parties would need to consider before developing a contract manufacturing agreement.
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(PDF, 109 KB)
In order to reduce costs and to remain competitive, exporters frequently "outsource" production to manufacturers in low cost countries (e.g. China). "Outsourcing" may take many different forms. It may involve key components, which then undergo final assembly in New Zealand. In some cases, production of the entire product may be "outsourced". This checklist identifies the issues that an exporter should consider before entering into an outsourcing arrangement.
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(PDF, 77 KB)
The purpose of this document is to provide the parties with a checklist of issues that need to be discussed but resolved prior to the drafting of a Product Development Agreement.
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(PDF, 250 KB)
This checklist is primarily intended for buyers of computer systems. It is assumed that the seller already has internal procedures and documentation obviating the need for this checklist. Nonetheless, a seller may wish to use this checklist to determine the adequacy of its own internal procedures and documentation.
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(PDF, 134 KB)
When it comes to buying plant and equipment, this checklist should serve as your guidebook. It takes you through the process, from a - z. It makes sure that you do not leave any stone unturned. With the purchase of plant and equipment, rarely are the buyer and seller on equal footing. This checklist levels the playing field. The buyer may not know all the answers but, with this checklist, he will certainly know the right questions to ask.
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(PDF, 113 KB)
Every exporter needs to make goods before it can sell goods. To make goods, the exporter will need to buy components and raw materials from suppliers. This checklist is the flip side of the Conditions of Sale checklists posted elsewhere on this website. This checklist addresses issues of concern to a buyer of goods. Not only does this checklist identify such issues, it also contains a glossary of clauses that a procurement manager may wish to incorporate either within a purchase contract or procurement conditions that often appear on the reverse side of a purchase order.
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(PDF, 74 KB)
This is a checklist of issues that manufacturers and exporters of manufactured goods may like to consider prior to exporting.
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(PDF, 101 KB)
An exporter's customer is normally a distributor or an original equipment manufacturer (OEM). This checklist addresses issues of concern to an exporter when it makes a sale to a distributor or an OEM. Not only does this checklist identify those issues, it also suggests clauses that an exporter may wish to incorporate within a sales contract or in its conditions of sale. This checklist may be used either alone or in conjunction with a distribution agreement or supply contract with the distributor or OEM. However, if the exporter has a distribution agreement or supply contract with the distributor or OEM, the issues in this checklist may be subsumed within such contracts or attached as an exhibit.
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(PDF, 106 KB)
A consignment agreement may be the price an exporter must pay to gain distribution of his products. The exporter may be so confident that the only way to convince a doubtful customer is to give him the goods and let the goods sell themselves. The consignment agreement checklist will help an exporter consider all issues concerning a consignment relationship. It will guide the exporter through the landmines associated with these type of deals. It will help ensure a reasonable level of legal and commercial protection.
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(PDF, 55 KB)
The following is a guide to what a credit application form for limited liability companies should cover.
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(PDF, 62 KB)
This checklist outlines the top level issues to consider when forming a parties' terms of trade for an export contract.
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(PDF, 94 KB)
Company A may wish to grant Company B a franchise to operate a business. The purpose of this checklist is to highlight, for the parties' consideration, issues upon which they would need to reflect before a franchise agreement could be prepared for them.
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(PDF, 44 KB)
This checklist mentions the obvious criteria that a request for tender ought to address.
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(PDF, 49 KB)
This checklist describes the information and conditions to be included in a sales confirmation form.
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(PDF, 69 KB)
Generally, sales reps work at the pleasure of the party engaging them. Under the law, a principal can be held liable for the acts and omissions of its sales rep. This checklist proposes the issues and dangers to consider when engaging a party as a sales rep.
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(PDF, 74 KB)
Is it truly necessary to have a US presence? Have you considered other strategies for marketing and supporting US customers without establishing a US presence? If so, this checklist provides important points to think about before making the leap into foreign territory.
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(PDF, 100 KB)
This checklist applies when an ASP provider provides application services to a client but, unlike a conventional software license, the software will reside on the ASP provider's server.
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(PDF, 96 KB)
Company A is contracting with Company B to provide a full range of software development and support services. Company A will pay Company B for these services, as specified herein. This is a checklist of issues that the parties must address in relation to the foregoing transactions.
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(PDF, 105 KB)
Company A is contracting with Company B to provide a full range of technology development and support services. Company A will pay Company B for these services, as specified herein. In consideration for such payments, Company B is granting Company A a licence to use any technology developed pursuant to the Contract. This is a checklist of issues that the parties must address in relation to the foregoing transactions.
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(PDF, 75 KB)
A Technology Evaluation Agreement is often the next stage after the parties have signed a Non-Disclosure Agreement. In some cases, it may even replace a Non-Disclosure Agreement.
A Non-Disclosure Agreement defines what is confidential and imposes conditions upon a recipient's use and disclosure of confidential information. A Non-Disclosure Agreement does NOT usually impose any obligations upon the recipient to evaluate the confidential information. This can lead to frustration and disappointment when a recipient does not seriously evaluate the confidential information disclosed.
A Technology Evaluation Agreement imposes obligations upon the Evaluator to conduct a proper and thorough evaluation. Since a Technology Evaluation Agreement requires the Evaluator to commit time and resources, the Evaluator has more at stake and is motivated to achieve a positive outcome.
This checklist sets out the issues that a Technology Evaluation Agreement should cover.
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